Channel Deepening BIOP Sparks Reaction

by Mike O'Bryant
Columbia Basin Bulletin - May 31, 2002

Biological opinions released by two federal agencies last week said a project that will deepen by three feet the Columbia River shipping channel from Portland, Ore., to Astoria will pose no jeopardy to 13 species of salmon, steelhead and cutthroat trout listed, or being considered, under the federal Endangered Species Act.

The favorable BiOp gave federal approval to the Army Corps of Engineers to deepen the channel from 40 feet to 43 feet to accommodate deeper draft cargo ships.

Even with the favorable rulings from the National Marine Fisheries Service and the US Fish and Wildlife Service, the Corps still must get water quality approvals from Oregon and Washington, complete an economic study that justifies the project's costs and benefits, and appeal to Congress for funds before the dredging can begin.

The BiOp requires the Corps to monitor the effects of its dredging operations and to shut down dredging if it appears to impact listed species. While it does not require the agency to mitigate for impacts, the BiOp does suggest it tackle six estuary restoration measures, all of which the Corps offered in its January biological assessment, that would restore over 3,400 acres of fish habitat in the lower Columbia River estuary.

Opponents of the dredging project reacted to the no-jeopardy BiOp with anger and are threatening lawsuits. However, opponents say that due to the political power backing the channel deepening project -- six lower Columbia River Ports, including the Port of Portland, Oregon Gov. John Kitzhaber, and the Oregon and Washington legislatures, all support the project -- the result is what they expected.

"It shouldn't have been a surprise," wrote Peter Huhtala, executive director of the Columbia Deepening Opposition Group in Astoria. "NMFS is supposed to protect salmon and their habitat, but the agency is also caught here in a nasty squeeze by the U.S. Army Corps of Engineers along with another army of special interest political forces. It's tough dancing in tight quarters."

Huhtala added that, for groups who oppose the project, the BiOp is encouraging because of "its wealth of contradictions" that "should help ensure a positive outcome for the coming lawsuits."

"The document is peppered with descriptions of how salmon will die during dredging, blasting and dumping. It anticipates short-term harassment and contamination of the already over-stressed fish," he said. "NMFS admits uncertainty about longer-term degrading of the estuary. They even declare that the deepening 'will adversely affect' Essential Fish Habitat. But seeming to 'hear no evil (or science, for that matter)' NMFS blesses the Corps with an agreement to let the destruction begin."

NMFS also approved the project in December 1999, but reversed that decision in August 2000 when faced with new scientific information, including how contaminants from the dredging operation would affect endangered species, and with a lawsuit brought against NMFS by Northwest Environmental Advocates. NMFS said its latest conclusion came after a more complete review finished jointly with U.S. Fish and Wildlife, the Corps and the participating (sponsoring) Columbia River port districts. The only lower river port not signing on to the pact is the Port of Astoria.

"We've taken a very thorough look at the project's effects," said Bob Lohn, NMFS regional administrator. "The best science available to us shows that this project will not jeopardize listed species."

Scientific review

Part of that scientific review included working last year with an independent panel of seven scientists organized by the non-profit Sustainable Ecosystems Institute. After this review with SEI, the Corps rewrote its biological assessment for the project and submitted it to NMFS on January 3, 2002. The new BiOp adopted much of that assessment.

"We see this as a huge political juggernaut," said Bob Heinith of the Columbia River InterTribal Fish Commission. "There is a common perception that the science has now been fully-vetted. We beg to differ."

Although there has been additional modeling work completed since the 1999 BiOp, Heinith said no new data was used in the modeling, so the new BiOp isn't any more robust than the 1999 document.

NMFS failed to consider the 'best available science' in many cases in the BO. The bottom line is that this opinion is even weaker for salmon than the 1999 Opinion, considering the 1999 opinion at least provided for stronger compliance and required some 5,000 acres of estuary habitat mitigation, where the new BO requires none," Heinith said in a brief prepared by CRITFC.

However, the Corps said that it provided much more detail in its biological assessment than it had in 1999. It added six restoration measures to the three proposed in its first assessment (although acres recovered fell by more than one-third), described how it will dredge to minimize environmental impacts and outlined a monitoring plan for before, during and after construction, as well as a research plan.

Laura Hicks, Corps manager for the channel deepening project, said the agency has worked closely for the past 18 months with NMFS and USFWS to define the problems contained in its first biological assessment and to address areas that needed more work. That's also why there are very few differences between the assessment and NMFS' BiOp, she said.

"We now have a pretty solid product," Hicks said. "It helped to work with the other agencies in the beginning."

Northwest Environmental Advocates disagrees with the comprehensiveness of the BiOP. It said that NMFS looked only at the incremental impact of the project on the ecosystem, failed to account for the long-term effects of this and all the dredging projects over the past century, and that the monitoring plan is a gamble. "The agencies continue to make decisions based on insufficient information about how the estuary works and how salmon use it," NEA said in a statement.

"Although the lower Columbia River and the threatened and endangered species that rely upon it have been in a dramatic state of decline for nearly a century, NMFS, in its latest opinion, has chosen to view the project only in terms of incremental harm as of today," NEA said. "In doing so, NMFS is choosing to gamble on a monitoring and evaluation program that will determine at some later date and time, while dredging is underway or even completed, what the effects of the project will be on the species they are charged with protecting."

According to the BiOp, the indirect impacts, which could occur any time during the dredging, will change water depth, water velocity in certain parts of the river and the distance salt water flows up-river. NMFS found that those changes would mostly occur in the navigation channel, not in sensitive rearing areas, such as marsh and swamp habitat in the estuary.

Direct impacts are the results of dredging. Protective measures include restrictions, such as keeping the dredge "cutterhead" on the river bottom where there are no fish so fish won't be sucked-up or entrained during the operation. Measures also will include a restriction on blasting when fish are present and disposing of dredged spoils in deeper water to keep silt away from fish. However, unlike other dredging approvals NMFS has given, it did not impose seasonal work windows (timing of the work only when fish are not present), but allows the Corps to work year round.

CRITFC said the impacts are not as inconsequential to salmon as NMFS claims, based on new information from Oregon State University. Heinith said researchers studying radio-tagged juvenile and adult salmon found that the fish do use the navigation channel and they do swim deeper than 20 feet. "That's where all the dredging will occur and where the plumes (of dredged sediment) will be released," Heinith said.

He also worried that, with saltwater moving further upstream after the channel is deepened, migration timing for juveniles would change and that could affect survival.

Monitoring and adaptive management as mitigation

If NMFS had decided the project jeopardized endangered species, it could still have approved the project, but required the Corps to mitigate for the impacts of dredging. In this case, NMFS followed a fine line, finding that endangered species could be directly or indirectly impacted, but instead it "negotiated protective measures that will minimize and avoid direct impacts to listed fish," according to the BiOp's executive summary.

The mitigation is a "robust monitoring and adaptive management program," according to NMFS' Cathy Tortorici. She said adaptive management will begin in 2003 and continue through and beyond the project's operation. If NMFS does find something that doesn't line up with the conclusions in the document, then it can order mitigation, a modification of the operation or stop the project all together, she said.

Habitat restoration projects key

Although the agency said they are not intended as mitigation measures, NMFS also approved a series of ecosystem restoration projects that will restore 3,420 acres of habitat for listed fish and make available 38 miles of inaccessible salmon habitat. The Corps will restore an additional 2,250 acres at Shilapoo Lake near Vancouver, Wash., that does not specifically benefit listed fish.

But, these are only suggested actions which the Corps is not required to do, according to Heinith. NMFS agrees, but says the Corps and participating ports have already committed to pay for the projects and all will be included in the channel deepening costs in the Corps' request to Congress for funding.

In fact, Hicks said, the Corps hopes to have some or all of the restoration complete by the time it begins the dredging, which would begin no sooner than 2003.

This is a change from the previous BiOp in which the Corps agreed to restoration projects that would include over 5,000 acres. Tortorici said that NMFS reviewed all the projects and the difference now is that all projects in the new BiOp are closely tied to benefits for fish, whereas those in the 1999 BiOp were not necessarily linked to fish benefits or to funding. "Yes, there are fewer acres, but they are all integral to the project," she said.

In addition, Hicks said the Corps could not give a firm commitment to fund the projects in the 1999 BiOp, whereas that commitment is now present.

Huhtala said some of the restoration projects are "bizarre," especially one that would dump 800,000 truck loads of sediment into a basin east of Tongue Point, which would affect a net-pen fishery worth millions of dollars per year to the local economy.

Lovenia Warren, of Salmon For All, a commercial fishing group in Astoria, values that fishery at nearly $7 million for the community. "(It's) ridiculous to claim that projects such as dumping dredge spoils over a productive fishing area, would benefit salmon," she told the Daily Astorian. "In reality, these 'ecosystem restoration' projects will do little, if any, good for the listed salmon. Once again, the fishermen suffer as a result of poor decision making by the federal agencies."

Another restoration project "destroys historical salmon fishing grounds while providing enhanced salmon feasting opportunities for birds," according to Huhtala. That is the 161-acre Miller/Pillar habitat restoration in which water between Miller Sands and Pillar Rock would eventually be filled to create shallow water next to Rice Island. The island, which was created by the Corps with dredge spoils, at one time attracted over 10,000 pair of nesting Caspian terns, which bred and fed on juvenile salmon. A three-year multi-agency plan to move the terns to East Sand Island closer to the ocean and away from juvenile salmon, many of which are listed species, was declared successful this year. However, Huhtala said this restoration project will impact fishermen in the lower river.

"Seventeen families of fishermen have been supported by that section of river for several generations," Huhtala said in January. "This will make it shallow and that is an economic problem for us."

"We recognize the public has a concern (about these projects)," Tortorici said. "However, a much broader discussion of the economic impacts of these projects will occur with the supplemental Environmental Impact Statement and economic review," a public process that should begin in July. She commented that the projects are intended to protect endangered species. The net pen fishery is a terminal fishery that evolves out of an Oregon Department of Fish and Wildlife hatchery program.

NEA said that neither NMFS nor the Corps really know what the long-term effects of the project will be or what benefits the restored sites will provide. "The agencies continue to make decisions based on insufficient information about how the estuary works and how salmon use it," NEA said.

However, Tortorici said NMFS evaluated all the projects and the results are in the BiO

Lawsuit in the future?

Heinith said CRITFC is unlikely to pursue a court solution to the NMFS decision because it already is tied up in a number of issues and one more would stress the tribes' resources. While he declined to provide specific information, he said others may soon file in federal court. NEA, which sued NMFS over its 1999 BiOp, was not available for comment

While obliquely referring to court action, Huhtala thinks some of the problems he sees in the project could be addressed in processes yet to come. He said the "environmental hurdles" are high.

"Case in point, the states of Oregon and Washington resoundingly denied water quality permits under the Clean Water Act back in 2000," he said. "Guess what? The substance of the project hasn't changed, except for the worse. The state agencies might choose a political decision similar to NMFS, but they shouldn't have much luck in court either."

He also pointed to the upcoming public economic review, which the Corps will begin in July. The Oregonian reported in March that the Corps' 1999 estimates of the project's economic benefits were more than double what reporters could calculate as benefits.

The reason the project is moving forward at all is that the lower Columbia River ports believe a deeper channel would improve trade. They predict a deeper shipping channel would attract larger ships and bring more business to Columbia basin cities and farmers. According to Dave Hunt, executive director of the Columbia River Channel Coalition, the additional three feet of depth would allow a ship to carry 6,000 more tons of grain or 300 more containers than they can now. About 40,000 jobs depend on the Columbia River maritime economy at an average wage of $46,000 per year.